Petconnect Rescue, Inc. v. Salinas

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 PETCONNECT RESCUE, INC., et al., Case No.: 20cv527-LL-DEB 13

Plaintiffs, 14 ORDER OVERRULING v. PLAINTIFFS’ OBJECTION TO 15 MAGISTRATE JUDGE BUTCHER’S

16 OCTOBER 29, 2021 ORDER DAVID SALINAS, et al.,

17 Defendants. (ECF No. 175) 18 19 20 Presently before the Court is Plaintiffs’ Objection to the Discovery Order issued by 21 Magistrate Judge Butcher on October 29, 2021 denying Plaintiffs’ ability to depose 22 Defendant David Salinas (“Objection”). ECF No. 175. For the reasons discussed below, 23 Plaintiffs’ Objection to Judge Butcher’s October 29, 2021 Order is OVERRULED. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 RELEVANT BACKGROUND 2 The fact discovery in this case closed on October 1, 2022 for Plaintiffs and 3 Defendant David Salinas.1 ECF No. 133. On October 29, 2021, Magistrate Judge Butcher 4 held a discovery hearing regarding multiple discovery disputes, including whether 5 Plaintiffs could depose Defendant David Salinas. ECF Nos. 148, 173. For the reasons stated 6 on the record, the Court denied Plaintiffs’ request to reopen discovery to take the Salinas 7 deposition and Defendants’ request to reopen discovery to take 30(b)(6) depositions. Id. 8 During the October 29, 2021 discovery hearing, the Court heard argument from 9 counsel for Plaintiffs, Mr. Bryan W. Pease, and counsel for Defendants, Mr. George R. 10 Najjar, regarding whether Plaintiffs could depose David Salinas. ECF No. 173 at 5:19-6:6. 11 After hearing argument from Plaintiffs’ counsel on this issue, Judge Butcher asked him 12 whether he “appear[ed] with a court reporter either virtually or in person at a deposition 13 and note[d] a failure to appear on the record?” Id. at 7:20-24. Plaintiffs’ counsel responded 14 that they “did not take a non-appearance, but we did notice it, and it was clear that they 15 were not going to show up.” Id. at 8:11-14. Judge Butcher also asked whether the “notice 16 include[d] a Zoom link for the remote deposition?” Id. at 8:15-16. Plaintiffs’ counsel 17 responded that “[i]t did not. . . .” Id. at 8:17-18. Judge Butcher found in relevant part: 18 It doesn’t sound to me like there was a failure to appear. It sounds like you 19 got some objections and indication from Mr. Najjar that there were some scheduling conflicts and you decided not to go forward with the deposition. 20 21 Id. at 8:25-9:4. Judge Butcher also found: 22 A party can’t unilaterally refuse to show up for a properly noticed deposition. I understand that you didn’t receive the communication that he didn’t plan to 23 appear. But, if it was properly noticed, that’s not an option. He could seek 24 relief in the form of a protective order, but failing to appear is – is not an option, and you didn’t send a Zoom link to Mr. Najjar or Mr. Salinas. So, 25 there, was no – no place for – where it’s deposition noticed, either an actual 26 physical location or a virtual location for him to appear. I don’t see that there’s 27 28 1 On October 6, 2021, the Court reopened fact discovery until February 1, 2022 for claims and defenses 1 a failure to appear. I see this as an objection that was raised to you, and in light of the objection, you decided not to move forward with the deposition. . . . 2

3 I interpret the joint motion as two motions, a motion by Plaintiff to extend or reopen fact discovery in order for Plaintiff to take the Salinas deposition and 4 a similar motion by Defendant to reopen fact discovery in order to take 5 Plaintiff’s persons most knowledgeable depositions.

6 I’m denying both motions. I find no good cause to extend the discovery cutoff 7 for either – either deposition. Certainly, neither of you have bent over backwards to accommodate the other. I’m troubled by the failures of 8 communication and cooperation, but neither of you have been diligent in 9 completing your discovery before the cutoff. You both had more than enough time to complete the depositions at issue. I issued an original scheduling order 10 on September 9th of 2020, setting the fact discovery cutoff of April 2, 2021. 11 At the parties’ request, I extended that fact discovery cutoff three times, first to July 2nd, then to September 2nd, and finally to October 1st for the specific 12 purpose of allowing the Salinas and persons most knowledgeable depositions. 13 Discovery was, therefore, open for 13 months. That provided plenty of time to notice and complete the depositions at issue. Neither of you have 14 established good cause for why the depositions could not have been noticed 15 and completed within the 13-month period during which fact discovery was open. The lack of last-minute cooperation by opposing counsel, again, is 16 unfortunate, but it doesn’t establish good cause for not pursuing depositions 17 much earlier. You each had 13 months to complete the depositions, and for whatever reason, they weren’t completed within that time period. 18

19 So that’s the ruling of the Court. That’s the order. 20 Id. at 10:13-22; 14:12-15:15. 21 On November 12, 2021, Plaintiffs filed an Objection to Judge Butcher’s October 29, 22 2021 Discovery Order. ECF No. 162. Judge Sammartino denied without prejudice 23 Plaintiffs’ Objection because Plaintiffs “failed to comply with Civil Local Rule 7.1, which 24 requires that a party obtain a hearing date from the law clerk of the judge to whom the case 25 is assigned before filing an objection pursuant to Federal Rule of Civil Procedure 72(a).” 26 ECF No. 164 at 1 (citing CivLR7.1(a)-(b), (f)). Judge Sammartino also denied Plaintiffs’ 27 Objection because “Plaintiffs failed to order the transcript of the Discovery Hearing and 28 attach it to the instant Objection.” Id. at 1-2. Judge Sammartino stated that “[w]ithout Judge 1 Butcher’s ruling, the Court cannot possibly determine whether it ‘is clearly erroneous or is 2 contrary to law.’” Id. (citing Fed. R. Civ. P. 72(a)). Judge Sammartino allowed Plaintiffs 3 to refile an objection to Judge Butcher’s October 29, 2021 discovery ruling, but only after 4 they ordered the transcript from the hearing. ECF No. 164 at 2. 5 On December 10, 2021, Plaintiffs refiled an Objection to Judge Butcher’s October 6 29, 2021 Discovery Order within seven days of the transcript being prepared per the 7 Court’s November 16, 2021 Order. ECF No. 175. Defendant filed a Response in 8 Opposition (“Opposition” or “Oppo.”). ECF No. 178. Plaintiffs filed a Reply in Support of 9 the Objection (“Plaintiffs’ Reply” at ECF No. 169), and Defendants filed an Objection to 10 Plaintiffs’ Reply (“Defendants’ Reply” at ECF No. 185). 11 PARTIES’ ARGUMENTS 12 Plaintiffs argue that Magistrate Judge Butcher’s Order denying Plaintiffs the ability 13 to depose Defendant David Salinas should be overturned because it is erroneous. Objection 14 at 3. Specifically, Plaintiffs argue that the Discovery Order “denies a key deposition to 15 Plaintiffs, and allows Defendants to evade a deposition with an invalid objection.” Id. 16 Plaintiffs argue that “Defendants should not be rewarded for simply refusing to show up at 17 a noticed deposition.” Id. at 5. Plaintiffs further argue that they “should not be required to 18 show good cause to ‘re-open’ discovery.” Id. Plaintiffs argue that they “attempted to 19 initiate this as an ordinary dispute, but the issue became subsumed in a number of other 20 ongoing discovery disputes.” Id. In sum, Plaintiffs argue that they “are not seeking to 21 reopen discovery” and that they are “only seeking to compel Defendant Salinas to sit for a 22 deposition that was properly noticed within the fact discovery cutoff, and that Salinas 23 simply refused to attend.” Id. at 6. 24 Defendants oppose Plaintiffs’ Objection and argue that “Plaintiffs failed to follow 25 all the directives of the Court’s order, for no hearing date was obtained (and if it were, 26 Defendants were not provided notice of such date), and inexplicably no references were 27 made in their written objection to the transcript or citations to applicable case law.” Oppo. 28 at 2. 1 LEGAL STANDARD 2 Under Rule 72(a), a party may object to a non-dispositive pretrial order of a 3 magistrate judge within fourteen days after service of the order. Fed. R. Civ. P. 72(a). 4 District court review of magistrate judge orders on non-dispositive motions is limited. A 5 district judge may reconsider a magistrate judge’s ruling on a non-dispositive motion only 6 “where it has been shown that the magistrate [judge]’s order is clearly erroneous or contrary 7 to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a); Grimes v. City and County 8 of San Francisco, 951 F.2d 236, 240 (9th Cir. 1991). “Under this standard of review, a 9 magistrate [judge]’s order is ‘clearly erroneous’ if, after considering all of the evidence, 10 the district court is left with the definite and firm conviction that a mistake has been 11 committed, and the order is ‘contrary to law’ when it fails to apply or misapplies relevant 12 statutes, case law or rules of procedure.” Yent v. Baca, 2002 WL 32810316, at *2 (C.D. 13 Cal. 2002). 14 The threshold of the “clearly erroneous” test is high and significantly deferential. 15 “The reviewing court may not simply substitute its judgment for that of the deciding court.” 16 Grimes, 951 F.2d at 241. “A finding is ‘clearly erroneous’ when although there is evidence 17 to support it, the reviewing court on the entire evidence is left with the definite and firm 18 conviction that a mistake has been committed.” United States v. Gypsum Co., 333 U.S. 19 364, 395 (1948); Matthews v. Chevron Corp., 362 F.3d 1172, 1180 (9th Cir. 2004). In 20 comparison, a magistrate judge’s order is contrary to law if the judge applies an incorrect 21 legal standard or fails to consider an element of the applicable standard. See Hunt v. Nat’l 22 Broadcasting Co., 872 F.2d 289, 292 (9th Cir. 1989) (noting that such failures constitute 23 abuse of discretion). 24 DISCUSSION 25 Pursuant to the Federal Rules of Civil Procedure 16(b)(2)-(3), district courts must 26 enter scheduling orders to establish deadlines for, among other things, filing motions 27 completing discovery. “A schedule shall not be modified except upon a showing of good 28 cause and by leave of the district judge or, when authorized by local rule, by a magistrate 1 judge.” Fed. R. Civ. Proc. 16(b). A “scheduling conference order is not a frivolous piece 2 of paper, idly entered, which can be cavalierly disregarded without peril.” Johnson v. 3 Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992). As explained by the Ninth 4 Circuit Court of Appeals: 5 Rule 16(b)’s ‘good cause’ standard primarily concerns the diligence of the party seeking the amendment. The district court may modify the pretrial 6 schedule ‘if it cannot reasonably be met despite the diligence of the party 7 seeking the extension.’ Fed. R. Civ. P. 16 advisory committee’s notes (1983 amendment) . . . Moreover, carelessness is not compatible with a finding of 8 diligence and offers no reason for a grant of relief. . . . [T]he focus of the 9 inquiry is upon the moving party’s reasons for seeking modification . . . . If that party was not diligent, the inquiry should end. 10

11 Johnson, 975 F.2d at 609. 12 Accordingly, to demonstrate diligence under Rule 16(b)’s good cause standard, the 13 movant may be required to show: 1) she was diligent in assisting the Court in creating a 14 workable Rule 16 order; (2) her noncompliance with a Rule 16 deadline occurred or will 15 occur, notwithstanding her diligent efforts to comply, because of the development of 16 matters which could not have been reasonably foreseen or anticipated at the time of the 17 Rule 16 scheduling conference; and (3) she was diligent in seeking amendment of the Rule 18 16 order, once it became apparent she could not comply with the order. See Anderson v. 19 Fresno County Service System, 2007 WL 1040974, at *2 (E.D. Cal. Apr. 5, 2007) (citations 20 omitted). 21 In denying Plaintiffs’ request to take Mr. Salinas’ deposition, Magistrate Judge 22 Butcher found that he disagreed with Plaintiffs’ contention that Mr. Salinas failed to 23 appear. ECF No. 173 at 8:25-9:4. Magistrate Judge Butcher found that based on 24 Defendants’ objections and scheduling conflicts to the deposition notice, Plaintiffs decided 25 not to move forward with the deposition. Id. Accordingly, Judge Butcher construed 26 Plaintiffs’ Motion as a Motion to extend or reopen fact discovery in order for Plaintiffs to 27 take the Salinas deposition. Id. at 14:12-17. Plaintiffs fail to explain why this aspect of the 28 Order is erroneous. Instead, Plaintiffs merely restate why they were unable to depose Mr. 1 Salinas prior to the discovery deadline. This Court agrees with the Magistrate Judge’s 2 || assessment in construing the motion as one to extend the discovery deadline, and finds the 3 || denial was neither erroneous nor contrary to law. 4 Magistrate Judge Butcher explained in detail that he had already granted the parties 5 || three motions to continue the fact discovery deadline. /d. at 14:18-15:15. Magistrate Judge 6 || Butcher found that Plaintiffs failed to demonstrate that they were diligent in seeking relief 7 || from the Court once it became apparent Mr. Salinas would not appear for the deposition. 8 ||/d. It is undisputed that Plaintiffs never filed a non-appearance nor did they send 9 || Defendants’ counsel or Mr. Salinas a Zoom link for the purported deposition. /d. at 7:25- 10 || 8:24. Accordingly, Judge Butcher found, and this Court agrees, that good cause did not 11 to grant an extension of the discovery deadline to take the deposition of Mr. Salinas. 12 In sum, this Court has reviewed the parties’ briefing and the underlying discovery 13 order, and the Court does not have a “definite and firm conviction that a mistake has been 14 ||}committed.” United States v. Gypsum Co., 333 U.S. 364, 395 (1948); Matthews v. Chevron 15 || Corp., 362 F.3d 1172, 1180 (9th Cir. 2004). For the reasons stated herein, Plaintiffs’ 16 || Objection is overruled. 17 CONCLUSION 18 For the reasons discussed above, the Court OVERRULES Plaintiffs’ Objection to 19 || Judge Butcher’s Order. 20 IT IS SO ORDERED. 21 Dated: March 9, 2022 MNO 22 eS | 73 Honorable Linda Lopez 34 United States District Judge 25 26 27 28